USA v. Eric Michael Brown

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 25, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-13001
Non-Argument Calendar
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D.C. Docket No. 1:09-cr-00339-JTC-AJB-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
ERIC MICHAEL BROWN,
llllllllllllllllllll l Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(August 25, 2011)
Before BARKETT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Eric Michael Brown appeals his 145-month total sentence after pleading
guilty to robbery, conspiracy to commit robbery, and illegal use of a firearm

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during the commission of a violent felony. Following completion of the briefing
schedule, we stayed Brown’s appeal so that the district court could resolve a
motion for resentencing filed by Brown. We directed Brown to notify the Clerk of
this Court when the district court had ruled on that motion.
On March 29, 2011, the district court granted Brown’s motion for
resentencing, but neither Brown nor the district court notified this Court that it had
done so. Instead, the district court held a resentencing hearing, entered a new
judgment and commitment order that reimposed the same 145-month total
sentence, and forwarded the new judgment and order to this Court. Brown now
requests that the appeal of his sentence proceed without any further briefing.
However, we find that the district court lacked jurisdiction to resentence
Brown. Under our precedent, the filing of a notice of appeal acts to divest the1
trial court of jurisdiction over the matters at issue in the appeal, except to the
extent that the trial court must act in aid of appellate review. Shewchun v. United
States, 797 F.2d 941, 942 (11th Cir. 1986). “More specifically, it is settled that
during the pendency of an appeal the trial court is without authority to modify a
We review a district court’s jurisdiction under a de novo or plenary standard of review.1
See United States v. Straub, 508 F.3d 1003, 1008 (11th Cir. 2007); United States v. Diaz-Clark,
292 F.3d 1310, 1315 (11th Cir. 2002). Where a district court lacks jurisdiction to enter an order,
we have appellate jurisdiction not of the merits, but merely for the purpose of correcting the error
of the lower court in entertaining the suit. United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct.
829, 832, 80 L.Ed. 1263 (1936).
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sentence meted out after final judgment.” Id. (citing Berman v. United States, 302
U.S. 211, 214, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1932)). Once divested of
jurisdiction, a district court’s authority is restored only upon remand from the
appellate court. See Wisecup v. James, 790 F.2d 841, 842 (11th Cir. 1986).
In the instant case, our stay order directed the district court to decide
Brown’s resentencing motion. Accordingly, the order granting that motion was
properly entered in aid of appellate review. Once the resentencing motion was
resolved, however, the district court lacked authority to entertain further matters
regarding Brown’s sentences, since those sentences had been imposed in a final
judgment and were clearly at issue in the pending appeal. Accordingly, as
specified in this Court’s stay order, the proper course of action would have been to
notify the Clerk of this Court that the motion was resolved, and to await an order
remanding the case for further proceedings.
Because the case was never remanded, we now vacate all actions taken by
the district court after March 29, 2011—including the issuance of the new
judgment and commitment order, as well as any oral rulings made at the
resentencing hearing. We remand the case for the purpose of allowing the district
court to formally resentence Brown on the record, and in a manner consistent with
any right he may have to be present at an ensuing proceeding. See United States v.
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Jackson, 923 F.2d 1494, 1496-97 (11th Cir. 1991) (discussing the scope of a
defendant’s right to be present for resentencing). Following resentencing, the
court should notify Brown of his right to appeal the new judgment subject to Rule
4(b) of the Federal Rules of Appellate Procedure, and, if either party chooses to
appeal, they should complete the record and ensure that all relevant portions are
included therein.
VACATED AND REMANDED.
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